Should UnitedHealth and Wellcare have the right to call for investigations by CPS or APS?

According to an employee of the Hawaii Department of Human Services, the two for-profit insurance companies running the state's Medicaid program are now able to call in complaints directly to Child Protective Services (CPS) and Adult Protective Services (APS).

Calls are coming in to DHS, according to the employee, with complaints that UnitedHealth and Wellcare are using the threat of calling CPS or APS to intimidate families into decreasing their requests for home services.

According to my source, the general threat is that if the person receiving care needs as many hours as the family is requesting, then it is not safe for them to be in their homes.

It's now no longer a threat to institutionalize their child, but a threat to take them away forever.

CDREA publishes 11th Anniversary webzine on the failure of the Olmstead Decision

A year ago, both the President and DHHS made a big public hoopla about the June 22, 2009 tenth anniversary of the Olmstead Decision.  That was the Supreme Court ruling that gave people with disabilities a civil right to not be institutionalized.

This year there is a small article on the government's Disability Blog.  Considering that at least twenty-two states have come under some sort of regulatory attack for violating the civil rights protected by Olmstead, it may not be too surprising.

The Children's Disability Rights Education Association has published a three page webzine on the failure of the Olmstead Decision.  We have had some success advocating here in Hawaii and legal documents are linked.

The point was also to put a face on the people who are actually being targeted for state Medicaid budget cuts across the state.

There are three sections:
The Failure of Olmstead
The Victims when Olmstead Fails
Successful Advocacy in Hawaii

Hawaii's Medicaid Death List Weighted Towards Native Hawaiians

Sources tell me that the infamous "death list" of Medicaid-care related fatalities is "more than fifty percent Native Hawaiian."

There are approximately 25 names on the list.  These are individuals with disabilities and special health care needs that require home health care from Medicaid to keep from being institutionalized. 

Reportedly the list is under investigation by the FBI and several of the families have confirmed they were interviewed. 

The death rate among this group rose 36% in the first year after Medicaid care was turned over to two for-profit health insurance companies, UnitedHealth and Wellcare.

Washington Post reports increased activity by DOJ Civil Rights Division

An article in the June 4, 2010 Washington Post reported on the vast change that has occurred in the Department of Justice's Civil Rights Division.

While mention is made of several different avenues that DOJ is currently investigating, the story omitted mention of the five states where DOJ has actively intervened on behalf of people with disabilities since December.

The following is the comment I posted in response to The Post's article:

disabilitymom wrote:
The disability community has seen a significant increase in the Division's attention to ADA issues. DOJ has intervened directly in five states since December on behalf of people with disabilities whose Medicaid home services are being cut below the level of medical necessity.

OCR at DHHS has opened two investigations in Hawaii into whether cuts in Medicaid home services violated the civil rights of two little girls (one of them mine).

The Division's Criminal Investigation unit has been looking into deaths from lack of care by Hawaii Medicaid providers UnitedHealth and Wellcare. Hawaii has seen a 36% increase in deaths among the elderly and disabled tied to lack of care issues in the first year since they entered this market.

This story links to the attention being paid to the fact that states are cutting Medicaid budgets to the disabled community because that's where they get the biggest bang for their buck.

One of the holdovers from the Bush era has been the privatization of Medicaid. Social and medical services that enable disabled children, adults and elderly to live with their families instead of in institutions are being put in the corporate hands of insurance companies like UnitedHealth, WellPoint, and Wellcare.

UnitedHealth and Wellcare together are taking home about $15 million a month from the Hawaii Medicaid program. Sixty-seven percent of that is federal money.

Nobody would ever propose putting Wall Street bankers in charge of our schools; why would anybody put disability services into the hands of companies that treat billions of dollars in fines as a cost of doing business?
6/5/2010 3:35:05 PM

Feds Investigate Hawaii Medicaid Cuts -- News for disability rights advocates

Hawaii's Medicaid program has come under federal scrutiny by one Federal department, and is pending scrutiny by another. The severe budget cuts that Hawaii has been making in its DDMR waiver program, and the way Medicaid is functioning under the new managed care (for profit) system that began February 1, are the objects of this scrutiny. On June 29, I filed a complaint with the Office for Civil Rights of the Department of Health and Human Services (OCR). On August 26, the San Francisco regional office of OCR notified the San Francisco regional office of the Centers for Medicare and Medicaid Services (CMS) of the issues involved. A lot of health and other professionals are relatively unaware of the hugely important role CMS plays in the day to day operation of our state Medicaid and Medicare programs. CMS wrote the last formal interpretation of the Maintenance of Effort (MOE) clause of the American Recovery Act which allowed the states to get away with making substantial medicaid service cuts and still receive stimulus funds. CMS decides how Medicaid and Medicare are supposed to function and issues letters to the states or rulings printed in the Federal Register, and then these items become law for states to follow. CMS isn't set up to handle individual complaints, but is now watching how the Hawaii Medicaid due process system functions, to ensure it functions the way CMS expects it to. As the parent of a child whose home services have been threatened with substantial cuts, I have the security of knowing that the state will have to follow federal law in these hearings. They're not going to be able to just "make it up as they go", as has happened so often in the past. Part of this process is ensuring that EPSDT, which entitles children with special health care needs to a much broader scope of services than normally provided under Medicaid, also functions as intended. From the standpoint of education advocates, this can provide a tremendous opportunity. DHHS has written manuals on how EPSDT and IDEA are supposed to function jointly to meet all the educational, medical and social needs of children with disabilities. They published a brochure in May 2003 with detailed instructions on how state education departments can bill EPSDT for services, and another brochure in 2004 specifically describing how EPSDT services are to be incorporated into the IEP.

Medicaid eligible children with disabilities are entitled to receive medical services in the school setting, paid for by Medicaid, if two important requirements are satisfied. First, the school/school district must be a participating Medicaid provider. Second, the services must be written into the child’s IEP/IFSP, which automatically makes them considered medically necessary.

Since the Hawaii schools are Medicaid providers, there is no reason for Hawaii's children who are eligible for Medicaid to continue to suffer from DOE denials of services. This issue of the integration of EPSDT with the IEPs will continue under federal scrutiny. Doctors can write letters of medical necessity and submit these, along with a prescription, to the child's Medicaid provider (either Evercare or Ohana). Medicaid is then supposed to provide it via the funding they are receiving from the state. That part of the system isn't functioning well right now - but that's how we can all help get things working correctly here. Linda Nuland-Ames and I have formed the Children's Disability Rights Education Association. Our first activity is an online petition to DHHS Secretary Kathleen Sebelius, calling for full transparency of how states are spending their Medicaid stimulus funds and ensuring that a priority is given to using these funds to replace Medicaid services which have been cut since July 1, 2008. According to DHHS, the states have already received over $28 billion in stimulus funds that can ONLY be spent on Medicaid. My state, Hawaii, has already received over $131 million (with more on the way). No one seems to know how it is being spent, and no one wants to answer my question why it isn't being spent restoring Medicaid service cuts. CMS tells me they are also working to have someone made responsible at the state level for communicating between families that have their services cut, and both the Hawaii Department of Health and Department of Human Services. CDREA will reach out to families whose services have been cut to ensure their concerns are heard and receive the consideration they so urgently deserve. Please join us in these actions. Summer Harrison Linda Nuland-Ames Children's Disability Rights Education Association

Hawaii Receives $70+ Million in Federal Medicaid Funds While Maintaining Service Cuts

According to the Federal Department of Human Services website, Hawaii received $70,573,033 in Federal Matching Funds (FMAP) for Medicaid prior to March 31, 2009. Hawaii's state medicaid Director, Dr. Ken Fink, has confirmed that Hawaii has been pulling on the funds available through the ARRA's section 5001, which will provide the state with an additional $360 million just for medicaid prior to October 2010. So why is Hawaii refusing to reinstate home and community based service cuts implemented since last July of 2008? Why are parents and caregivers being threatened with having a third round of cuts in the services that enable their children to remain at home and in their communities? Where is Hawaii spending the money? First, I want to clarify that Dr. Fink has stated I am wrong in my earlier posting suggesting Hawaii was violating the Maintenance of Effort (MOE) requirement for receiving the additional federal medicaid funds as stipulated in the American Recovery Act (ARRA) passed earlier this year. Second, I want to clarify that I continue to doubt the extent to which Hawaii's medicaid cuts are allowed under the MOE requirement. Hawaii needs to reinstate all the cuts made to home and community based services and waiver programs as soon as possible, since the deadline for compliance with the MOE is July 1. The latest word by CMS, the government agency responsible for policing and defining states' use of the 5001 federal funding, states clearly that:

several states have made or proposed changes to programs that help seniors and people with disabilities live independently; CMS guidance clarifies that any changes to such waiver programs that would result in fewer people being enrolled would violate the MOE requirement for the increased federal Medicaid funding. As a result of this guidance, states will have to reverse these cuts or rescind these proposals, at least until December 31, 2010

The state of Hawaii has eliminated all of its home and community based waiver services except for the program for the developmentally disabled, and radical service cuts in that program are placing the state in potential violation of the ADA and the rights granted under the Olmstead decision. Interesting, a Performance Report printed by the DDMR division of the Hawaii state department of health in September of 2008, showed FY 2009 expenditures dropping 65% from FY 2008, from more than $20 million annual to only $7.2 million annually. That's a $14 million cut in the services that enable adults and children with special health care needs to remain at home, with their families. On the other hand, the state seems to be requiring an additional $10 million over FY2008 for administrative positions, mostly related to what the state budget keeps referring to as the "proposed Division-wide reorganization." Do we know anything about this reorganization? Why is DDMR disappearing? Who is going to take over providing the financial supports for the home and community care our citizens with special health needs require? The only answer I can come up with is that Hawaii's two new medicaid managed care companies are supposed to be picking up the slack from the waiver programs. The only problem with that solution is that the definition of a "budget neutral program" is completely different for a medicaid program authorized under Section 1115 of the Social Security Act than it is for a medicaid program authorized under Section 1915. And that difference results in a shift in expenses from actual services to employee salaries and insurance corporation profits. Back in 2006, the UCSF National Center for Personal Assistance Services issued a simple explanation of the different budgetary ramifications for 1915(c) waivers as opposed to 1115 programs:

Like 1915(c) programs, 1115 programs must be budget neutral. However, for 1115 programs this means that the program cannot cost Medicaid any more than the state would have spent in the absence of the waiver1, 26 whereas 1915(c) programs should not cost more than providing state plan services, such as nursing home care, to the same population.

In other words, Hawaii's new 1115 Managed Care Medicaid Organizations can't spend any more funds than they would if there were no waiver participants. Excluding from the budget neutrality calculations any funds for an individual, say, with developmental disabilities on a 1915 waiver, is going to reduce precipitiously the budget compared with what would be allowed counting all those previous HCBS waiver participants back into the figures. But all of this was originally calculated before Obama was elected and the ARRA was even being dreamed about. So what is Hawaii spending the money on? It's not on the children and adults with disabilities who desperately need to remain at home with their families and communities. The CMS specifically states that:

To be in compliance with the MOE, a state cannot have done the following after July 1, 2008: ... Eliminated coverage for home- and community-based waiver care that costs more than institutional care, which could make it harder for some individuals to qualify for waiver coverage.

All of the 1915(b) waiver participants who have been switched to an 1115 program can no longer receive all the services they were entitled to previously. Which is why the insurance company giants operating Hawaii's medicaid MCOs are telling parents not to ask for more in home nursing care because if it's cheaper to throw the kid in an institution, that's what they'll do. This would seem to me to be about as blatant a violation of the MOE requirement as you can have.

Why cutting state Medicaid budgets is a terrible economic decision

In 2003, the national office of ARC published an article focusing on the economic impact of cutting the state Medicaid budget. Considering the number of states currently attempting to do the same thing, the article's explanation of the mathematics of cutting state Medicaid budgets is extremely timely. The basic logic is that for every dollar of state spending cut, the state loses at least $1 in federal funding. It's because the federal government matches state medicaid spending, by percentages ranging from 53% to more than 80%. (The acronym for the federal matching funds percentage is FMAP). So in 2003, in Hawaii, for every dollar the state spent on Medicaid, it received $1.43 from the Federal government. This sums it all up:

In 2001, Hawaii spent $308 million of state dollars and $455.8 million federal dollars on Medicaid. This resulted in $743 million in new business activity in the state leading to the creation of more than 7,000 new jobs. Every $10 million cut in Hawaii’s state share of Medicaid spending could lead to a loss of $29 million in state business activity, resulting in 286 jobs lost in the state. Source: Families USA, Medicaid: Good Medicine for State Economies; January 16, 2003.

This could be summed up as the "cut off your nose to spite your face" approach to economics. What it also means is that for every $10 million the state (in this case Hawaii) cuts from it's Medicaid budget, the community of individuals with disabilities and special health care needs actually loses $2.43 million worth of services. The states forget to tell us that when they are going on and on about how they have to make the cuts someplace and we all need to just take it on the chin, or grin and bear it, or whatever platitude you're hearing from your state officials. The federal Stimulus bill enacted by Congress on February 17 of this year added $86.6 billion to the FMAP for the states. Each state's share of federal funding increased by at least 6.2%. Here's the list of how much additional FMAP funding each state is due to receive. The question is, with all the state cuts in medicaid funding happening across the country, what is going to happen to this potential increase in federal funds? Especially since

States would only be eligible for the FMAP increase if they ensure that their Medicaid eligibility criteria and enrollment/renewal procedures are no more restrictive than those in place on July 1, 2008.

So how narrowly are we going to define "Medicaid eligibility criteria and enrollment procedures"? In Hawaii, for example, the state put into effect substantial cuts in personal services (including skilled nursing) for children with disabilities under the age of 13. The letter sent out to parents on July 3, 2008 stated services were going to be re-evaluated for cuts for any child in a home based waiver program under the age of 13 and receiving more than 29 hours of services per week. Then in December, Hawaii cut another chunk from the personal services received by these same children, along with other participants (regardless of age) who were enrolled in the state's Medicaid 1915(c) waiver program providing Home and Community Based Services. I haven't heard anything about these services being reinstated. And I've already uploaded news articles showing another seven states are also in the process of completing first and in some cases, a second round of medicaid cuts. A lot of these cuts are aimed at the home services that allow our kids to stay at home with us. And in the middle of all this, what is happening with the funds for EPSDT? Mention of the program is strangely missing from the vast majority of articles I've been able to find on cuts in services for children with disabilities. I am not an economist. And right about now I'm beginning to wonder if the states need forensic economists in order to figure out where the EPSDT funding is being spent now and what's happening to it in the greater scheme of states cutting medicaid related services. EPSDT cannot be cut. Whether the services are provided through medical providers or your school district, your state absolutely cannot cut any service a doctor says is medically necessary for your child. If your child needs formula because he or she feeds through a tube, it can't be cut. If your child requires 24/7 skilled nursing, it can't be cut. If your child requires diapers, or specialized bathing equipment, these expenses cannot be cut. But they are. So what has happened to the EPSDT funds?

More documents uploaded to SCRIBD

I've just uploaded another twenty documents to SCRIBD. Just click on the SCRIBD widget at the top of the left column to access them.